Citation Nr: 1535124
Decision Date: 08/17/15 Archive Date: 08/20/15
DOCKET NO. 08-29 983 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan
THE ISSUES
1. Entitlement to an initial disability evaluation in excess of 20 percent for status-post repeated rotator cuff tears, with calcific tendonitis and osteoarthritic changes of the acromioclavicular and glenohumeral joints prior to January 19, 2012, and in excess of 30 percent thereafter.
2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU).
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
G. Fraser, Associate Counsel
INTRODUCTION
The Veteran served on active duty from July 1985 to March 1992 and October 2003 to August 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.
When this case was before the Board in October 2014, it was decided in part and remanded in part. The Veteran appealed the Board's denial of a higher schedular evaluation for right shoulder disability to the United States Court of Appeals for Veterans Claims (Court). In June 2015, the Court granted a joint motion of the parties and remanded the case to the Board for action consistent with the joint motion. The case is now again before the Board.
The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS).
REMAND
Initially, the Board observes that the Veteran was granted service connection for a lumbar spine disability in the above-noted October 2014 Board decision. In an April 2015 rating decision, the RO effectuated the Board's grant of service connection, and assigned a 20 percent rating effective from March 31, 2009. The RO based its decision on the report of May 2009 VA examination. The Board has reviewed that report and notes the examiner did not provide an assessment of the Veteran's functional impairment resulting from his service-connected lumbar spine disability. However, in the course of that examination the Veteran did state he was unemployed, "secondary to both his right shoulder and his low back."
Additionally, the Board has reviewed the report of the Veteran's most recent September 2013 VA general medical examination. Although the examiner provided a statement relative to the functional impact of each of the Veteran's service-connected disabilities individually, he did not indicate whether the Veteran's disabilities were sufficiently disabling in concert to preclude physical and sedentary employment. Based on the foregoing, the Board finds a new VA examination is warranted to assess each of the Veteran's service-connected disabilities, as well as the functional impairment that results from the disabilities both individually and in concert. Since the Veteran's right shoulder disability will be re-examined, the Board will defer adjudication of this issue pending the results of the examination.
On remand, all relevant ongoing medical records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).
Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions:
1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's remaining issues on appeal, to include any more recent treatment records related to the claimed disabilities. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e).
2. Then, the Veteran should be afforded a VA examination by an examiner or examiners with sufficient expertise to accurately assess each of the Veteran's service-connected disabilities. The electronic records should be made available to and reviewed by the examiner. Any indicated studies should be performed.
The RO or AMC must ensure that the appropriate examiner provides all information required to rate the Veteran's right shoulder disability.
3. The RO or AMC must also obtain a comprehensive medical opinion from an examiner addressing the impact of all service-connected disabilities on the Veteran's employability.
The examiner(s) should state an opinion as to whether there is a 50 percent or better probability that the Veteran's service-connected disabilities are sufficient either individually, or in concert, to preclude him from obtaining or maintaining any form of substantially gainful employment consistent with his education and occupational background.
A rationale for the opinion must also be provided.
4. The RO or the AMC should also undertake any other development it determines to be warranted.
5. Then, the RO or the AMC should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action.
By this remand, the Board intimates no opinion as to any final outcome warranted.
The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999).
This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).